modern treaties 101 proceedings 1211261

8/11/2019 Modern Treaties 101 Proceedings 1211261

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WORKSHOP NOTES

Table of Contents

Introduction to Modern Treaties ............................................................................................................. 2

Treaty Making in Canada: An Overview ................................................................................................... 6The Legal and Constitutional Status of Modern Treaties .......................................................................... 8

What is Self-Government? ..................................................................................................................... 13

Restructuring Public Government: The Nunavut Example ...................................................................... 16

The Negotiating Process ........................................................................................................................ 18

Implementation Challenges ................................................................................................................... 21

How Modern Treaties Affect Resource Development and the Regulatory Process ................................. 25

Benefit Agreements and Relations with Industry ................................................................................... 39

Hunting Rights and Wildlife Management.............................................................................................. 53

The Elephant in the RoomFiscal Adequacy ......................................................................................... 63

What Lies Ahead: New Approaches to the Future .................................................................................. 67

Closing Comments and Final Remarks.................................................................................................... 70


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Introduction to Modern TreatiesPresented by: Alastair Campbell and Terry Fenge

Alastair Campbell, Senior Policy Liaison, NTI

This is a snapshot presentation about land claim agreements and where they come from. Initially, theBritish signed treaties of friendship and alliance with First Nations and Inuit in Canada. Aboriginal

peoples were very important in the early history of Canada. Without them Canada would not exist

today. In 1763 a Royal Proclamation was issued, aboriginal lands were declared to be set aside, had to

be negotiated by the Crown. This was the roots of the later treaty-making system which involved lands

in exchange for benefits.

This map shows the main historic treaties, including the Maritime Peace and Friendship treaties(in

red), numerous land-related treaties in Ontario (pale yellow and light brown), the Robinson treaties (in

orange) and the post-confederation numbered treaties (in green).


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went to court to establish their Aboriginal rights. Following that, Pierre Trudeau and the Government of

Canada adopted a land claim negotiation policy.

James Bay 1975:provoked by the Government of Quebec development of Hydro Resources. Naskapi,

Cree and Inuit were not part of the development and an injunction was secured to stop development,

which started negotiations.

Naskapi 1978:Agreements now cover from Labrador to British Columbia and a big chunk of the North.

Most of British Columbia, southern NWT and parts of Yukon, Quebec, Eastern Ontario and the Dene

from Northern Manitoba are involved in negotiations to some degree.

Nunavut Land Claims Agreement, 1993- Land claim agreements are based on Aboriginal rights and title.

Modern Treaties, otherwise known as comprehensive land claims agreements, are generally signed

where Aboriginal title and rights have not been dealt with.

Modern Treaty signatories:

James Bay and Northern Quebec Agreement (1975) North-Eastern Quebec Agreement (1978)

Inuvialuit Final Agreement (1984)

Gwichin Comprehensive Land Claims Agreement (1992)

Yukon Umbrella Final Agreement (1993)

Yukon First Nation Final Agreements:

o Champagne and Aishihik First Nation (1995)

o First Nation of Na-Cho Nyak Dun (1995)

o Teslin Tlingit Council (1995)

o Vuntut Gwitchin First Nation (1995)

o Little Salmon/Carmacks First Nation (1997)

o Selkirk First Nation (1997)o Trondek Hwechin (1998)

o Taan Kwachan Council

o Kluane First Nation (2004)

o Kwanlin Dun First Nation (2005)

o Carcross/Tagish First Nation (2006)

Nunavut Land Claims Agreement (1993)

Sahtu Dene and Metis Comprehensive Land Claim Agreement (1994)

Nisgaa Final Agreement (2000)

Tlicho Land Claims & Self-Government Agreement (2003)

Labrador Inuit Land Claims Agreement (2005)

Nunavik Inuit Land Claims Agreement (2008) Tsawwassen First Nation Final Agreement (2009)

Eeyou Marine Region Land Claims Agreement (2010)

Maa-nulth Final Agreement (2012)

Objectives of Modern Treaties:

Greater certainty over rights to land and resources therefore contributing to a positive

investment climate and creating greater potential for economic development and growth


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Greater control for Aboriginal people and Northerners over the decisions that affect their lives

Modern TreatiesNunavut Land Claims Agreement Objectives:

Certainty and clarity in land ownership;

Inuit participation in management of lands and resources, including the offshore;

Inuit wildlife harvesting and management rights;

financial compensation and economic opportunity; and

Inuit self-reliance and social and cultural well-being.

Terry Fenge, an Ottawa-based consultant, with many years experience with

negotiating and implementing modern treaties

Much of what youll hear in the next two days will be about problems with implementation. However,

we have achieved great things compared to other countries.

People do not often consider the implementation plans that accompany the agreements, but they arevery complex documents, often larger than the treaty documents. These treaties are complex because

they are comprehensive. They encompass land, royalties, social and cultural provisions, political

development, resource management, etc. They require extraordinary commitment to fulfill all of the

obligations and duties that were negotiated. Not an easy task.

There are significant difficulties in negotiating these agreements, which is why we have come together

as a coalition over the past 10 years. Back in the 1980s we formed a coalition, and that brought together

the original six organizations as well as two others who were beginning their negotiations. That coalition

had some modest success. Now, we have a coalition of all of the modern treaty organizations, trying to

persuade Ottawa to honour its commitments.

There is a school of thought that suggests that once the agreement is done, its up to the Aboriginal

people to implement them. This is erroneous. The agreements are effectively marriages between the

government of Canada and the various groups across the country, in which a new relationship is defined

and expected.


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Treaty Making in Canada: An OverviewPresented by: Jim Aldridge

Jim Aldridge, General Counsel, Nisgaa Lisims Government, Partner, law firm

of Rosenbloom, Aldridge, Bartley & Rosling

The history of treaty making between the Crown and Aboriginal people is the history of Canada. It

defines who and what we are. There are many theories about this, but the Supreme Court says the

purpose of treaties is to reconcile the pre-existing Aboriginal sovereignty with the sovereignty of the

Crown. Its been looked at in different ways over the years, but that is the core.

From the earliest days when Europeans found that the land was occupied, and they were outnumbered,

they needed peace and friendship with the people here already. So, we have a series of such peace and

friendship treaties. They made deals to get along, work together. Then they made military alliances with

Europeans. Then, when the British established overall control of British North America, after the Plains

of Abraham, and the treaty of 1761, King George found himself with a lot of heavily armed Aboriginal

allies.

The Royal Proclamation of 1763 established the basis for British rule of North America. King George

promised that before land could be acquired by the Crown (and only the Crown), there must be the

consent of the Indian people. The focus changed from peace and friendship to acquiring the right to

enter territory and settle it. That was the second phase of treaty making. A number of treaties were

entered into, where the Crown acquired land for settlement.

The first big treaties that presaged the next era were in 1850, when the province of Canada decided to

acquire the land around Lake Huron and Lake Superior, and sent Mr. Robinson to negotiate with the

Ojibway. According to these treaties, hunting and fishing could carry on but there was a promise to

establish reserves, and to pay annuities. There was an upfront payment, and an agreement to pay onedollar per year per person. However, if the land produced wealth the annuities would be increased to up

to $4. After Confederation in 1867 we saw what has become so familiar; the federal government and

the provincial governments having a fight over who pays the annuities. This went to arbitration, then led

to a court decision that the Federal Government were on the hook. There have been several such

federal/provincial disputes.

No sooner was the ink dry on the 1867 British North America Act than Canada negotiated a deal with

the Hudsons Bay Company to buy a huge chunk of Canada from them, to which they had private title.

However, no one spoke to the Aboriginal people who lived on the land. Surveyors then went into the

Red River area and started laying out plots of land. The Mtis objected and were afraid, for good reason.

When the surveyors arrived, one of the Mtis stood on the surveyors measurement chain and caused

an argument. This commenced the Red River Resistance, when the Mtis did not consent to the

annexation of the land. So, John A. Macdonald asked to meet with them, and made a deal with them.

That agreement became known as the Manitoba Act. July 1870, that agreement allowed the west into

Canada, but now the federal government had the burden of negotiating with the rest of the Aboriginal

groups in Canada. Treaties then became more like real estate deals.


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History was unfolding on the west coast in quite a different way. Governor Douglas entered into a

number of treaties on Vancouver Island. They were local, very simple treaties. But he was dealing with

people who had a long history of sophisticated trading relationships and they were driving a hard

bargain. Douglas did not have the resources to provide the compensation they were demanding. He

wrote back to the Crown in England that he needed more money. London wrote back, agreeing that,

yes, he had to negotiate treaties, but they provided no money. So he unilaterally established reserves

and had them surveyed.

Douglas left office in 1865, replaced by Joseph Trutch. He was a racist. He did not believe that Indians

had rights to land. They were less than human, treaties were not necessary. Reserves were far too large,

so he had them reduced in size and refused to negotiate. He gave land to white settlers. He was a

negotiator of the 1871 Terms of Union. Shortly after confederation, the feds were negotiating treaties

and B.C. said they did not negotiate treaties. They told the feds that they had to buy the land from B.C. if

they wanted to give it to the Indians.

In 1887, the Nisgaa sent a delegation to Victoria to meet with the Premier. They had a long talk, it was

recorded. They said they wanted a treaty. The Premier said he didnt know what a treaty was and

refused to discuss it. In the 1880s, Nisgaaformed the NisgaaLand Committee, for the purpose ofsettling the land question. In 1913, they commissioned a petition to the Privy Council. It looked as

though it was a demand to enter into a treaty, said there was a duty to enter into a treaty. It was very

public and was picked up by the media. There was pressure on the Canadian Government. Duncan

Campbell Scott proposed to refer the issue to the Exchequer Court on whether or not Aboriginal people

had title, on three conditions:

If you do have title, you must agree to extinguish it;

In return for the same benefits given to the people of the Prairies; and

We (the government) will hire and instruct your legal counsel.

Nisgaarefused, and eventually there was a committee meeting. Then, in 1927, the Government of

Canada made it illegal to pursue a land claim. There was a hiatus, and the issue didnt resurface until the1970s. There was uncertainty; a negotiation policy was established, with the purpose of resolving the

uncertainty.

However, previous to that, the purposes were always to establish relationships. This was a shift in

perspective. It was the beginning of the modern treaty process.

Those of us whove spent decades at the negotiating table have not appreciated one important fact: the

day the land claim settles is the day the hard work begins.


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The Legal and Constitutional Status of Modern TreatiesPresented by: John Merritt and Jim Aldridge

John Merritt, Legal Counsel, Nunavut Tunngavik Inc.

There are two things we can say:1. there has been a lot of evolution in the past, and it is continuing; and

2. modern treaties have multiple legal personalities

Common law is buttressed by executive interventions (Royal Proclamation of 1763, Indian Act). The

Nunavut Land Claim Agreement (NLCA) is a contract, and is part of the public law of Canada. Various

provisions only make sense if it has the force of public law. These agreements prevail against other laws.

The Nunavut Land Claim Agreement also has the force of an interpretation statute, because it prevails

against any other conflicting law of Parliament. Other modern treaties have similar rules of

interpretation. These agreements have international stature, like the UN Declaration on the rights of

Indigenous People. Thats how the world sees them, that yardstick exists.

Canadian courts can and have used the UN Declaration to help them interpret Canadian land claim

agreements. This single document, a treaty, has personalities, relationships and implications on many

levels. There are a variety of tools available to enforce them.

What are the broad legal and Constitutional contexts of modern treaties in Canada? Everything begins

in religion and ends in politics yes, and touches on history, law, administration, etc.

What figures in those broad contexts?

Settler societies encroaching on Aboriginal societies

Assertions of sovereignty in the international arena (law and politics) In the Anglosphere, development of common law principles through case law (both

Constitutional and proprietary rights common law)

Common law buttressed by executive and legislative interventions (e.g. Royal Proclamation of

1763, The Indian Act)

A kinder and gentler contemporary Canada ?

Case law throws up some animating, and sometimes motivating, general principles, for example:

Aboriginal title and rights to lands and resources

Fiduciary relationship between the Crown and aboriginal peoples

The crystallization of that relationship into fiduciary duties in some circumstances

The Honour of the Crown, and invocations against such things as sharp practice The Nowegijick rule of interpretation favouring aboriginal treaty parties

Reconciliation as a fundamental guide/objective in Crown/aboriginal legal conflict

A duty of consultation/accommodation

In this rather yeasty, and still shifting, broad legal and constitutional context, what are the multiple

personalities of these modern treaties? Lets use the Nunavut Land Claim Agreement as an example.


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First, the Nunavut Agreement is a contract between the Crown in right of Canada and the Inuit

of Nunavut. The obvious intention of the parties was to enter into binding obligations. It was

signed by parties having legal capacity. It is supported by valuable consideration. On the Crown

side, any legal imparities were removed by ratification legislation. So, if it walks like a duck and

talks like a duck

The Nunavut Agreement is part of the public law of Canada. This is not said explicitly in the

Agreement. However, several of its provisions and its ratification legislation only make sense if

the Agreement has this force. For example, the Agreement being binding on third parties;

statutory vesting of powers and duties; and interpretive primacy with respect to inconsistent

legislation.

The Nunavut Agreement has the force of an interpretation statute against all other (non-

Constitutional) public law (see sections 2.12.2 and 2.12.3). Its ratification legislation has similar

status to an interpretation statute. Other modern treaties have similar rules of interpretation.

Non-derogation, or, more appropriately, derogation clauses anyone?

The Nunavut Agreement is a treaty for the purposes of the Constitutional protection afforded by

section 35 of the Constitution Act, 1982:

o 35. (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are

recognized and affirmed.

o (2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Metis

peoples of Canada.

o (3) For greater certainty, in subsection (1) treaty rights includes rights that now exist

by way of land claims agreements or may be so acquired.

The Nunavut Agreement is part of what defines the relationship of the Inuit of Nunavut to the Canadian

state for purposes of international as well as domestic law. Inuit are a people under international law,

and for international human rights purposes, as well as under domestic law. The treaty and other rights

of Nunavut Inuit fall within a range of provisions of such international human rights instruments as the

United Nations Declaration on the Rights of Indigenous Peoples (2007). Implementation, and respect forthe provisions of the Nunavut Agreement and other modern treaties, is a yardstick of Canadas respect

for international human rights obligations.

Canadian courts can use international law to interpret Canadian law. It could be suggested that it is not

reasonable to believe that a single modern treaty can support all these various legal and Constitutional

personalities. However, the text of the Nunavut Agreement does not speak against this possibility and

there is no compelling reason to come to such a conclusion.

What are some of the practical consequences of modern treaties having multiple legal and

Constitutional personalities?

Most importantly, a variety of legal and Constitutional tools become available to enforce

them.

For example, different remedies: declarations of non-Constitutionality; injunctive remedies

against public officials to carry out public law responsibilities; contractual remedies such as

an award of monetary damages for non-performance.


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Tracking a variety of potential remedies provides the opportunity for a variety of judicial

arenas, such as Federal Court of Canada; provincial/territorial superior courts; international

tribunals?

SPECIFIC TOPICS:

Some Possible Legal Questions Regarding Contractual Status of Modern Treaties

Full range of contractual remedies available?

Monetary damages for breach?

Specific performance?

Could there be fundamental breach of such a quality as to amount to repudiation; to open up

the possibility of rescission or some other form of contractual failure?

Capacity issues as to consent? Parties not ad idem? Failure of consideration? Frustration?

Could an aboriginal title be revived? Why not? How could Humpty Dumpty be glued together

and put back on the wall? For example, would compensation moneys have to be repaid?

How would a contractual analysis stack up against the fact that at least some modern treatieshave the force of public law?

Is their public law force impliedly dependent on their remaining contracts in good standing, or

would their public law force remain, in whole or in part, even if contractual status was

removed?

Faced with these complexities, would courts be willing to be creative in supplying remedies to

aboriginal parties where agreements have been breached, which would avoid the full

application of contract law? This might be particularly important in areas involving access to

renewed flows of public funding.

Mandatory arbitration?

Supervisory role of court?

Others?

MORE SPECIFIC TOPICS:

Possible Legal Issues Surrounding the Periodic Update of Implementation Measures What Happens in

the Absence of Consensual Renewal?

Does nothing happen?

Does each party bear the risk of parts of treaties becoming, at a practical level, inoperative or

unenforceable?

Would that conclusion as to voluntary assumption of risk require a finding that such a result was

actively contemplated by both parties?

If not contemplated by both parties, would a court be driven to conclude that the parties might

not have been sufficiently ad idem to have entered into a binding contract at all?

Alternatively, would an extensive exercise in severability follow?

How would the inoperativeness, or unenforceability, or severability, of parts of the treaties stack

up against the public law dimensions of the treaties? Public law analysis would support the

proposition that no part of the public law should be left meaningless.


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MORE SPECIFIC TOPICS:

What Legal Principles Guide the Flow of Crown Funding to Public Bodies/Processes in the Absence of

Consensual Renewal?

A key item of time limited business found in modern treaties is the funding of a set ofinstitutions and processes intended to create new systems of governance over settlement areas.

These can take the form of explicit self-government arrangements, regional public government

arrangements, joint land, resource, and wildlife management and regulatory bodies, or special

purpose bodies with mandates in relation to education and health services.

All depend on the ongoing flow of funding from the Crown, or, perhaps more accurately, from

the Crown acting in concert with Parliament.

What happens if there is no consensus renewal?

Do all these obligations become entirely hostage to unilateral decision-making by the Crown, in

the absence of provisions in treaties (conventionally absent) that allows the aboriginal party

access to binding arbitration?

If so, are there any theoretical limits on the power of the Crown in this regard? Could these

bodies be, in effect, reduced to meaninglessness through starvation budgeting?

What does the overlay of the fiduciary analysis and the concept of the honour of the Crown add

to the analysis?

Is there a point where the judiciary would remove the ability of the Crown to act unilaterally by

either imposing its own judgment as to funding flows and arrangement or insist on access to

arbitration or some other involuntary form of dispute resolution?

We are left with many things to consider. Where and how does the Crowns duty to consult and

accommodate fit? We will have to stay tuned to find out.

Jim Aldridge, Partner, law firm of Rosenbloom, Aldridge, Bartley & Rosling

Modern treaties are many things; this adds a dimension to their application. Often they are erroneously

regarded as checklists of things that must be done.

Constitutional Nature of Land Claims Agreements

1982: Charter of Rights and Freedoms; Section 35in respect to the rights of Aboriginal people. Section 1

said the rights of the charter are guaranteed, subject to certain limitations. This does not reach into

section 35. There was a sense that Aboriginal and treaty rights had a greater degree of constitutional

protection than the Charter. In those days, the feds would not call land claims agreements treaties.

There was some question as to whether sec 35.1 included land claims agreements. This was augmentedwith sec. 35.3 which clarified them as treaties.

Sparrow Case:rights under section 35 are not absolute. They invented a test; they said that Aboriginal

rights are capable of being infringed upon, if there is a valid legislative objective or if its justifiable in

accordance with the honour of the Crown.


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Regina and Badger:They said that what held for Sparrow held there too. Treaty rights can be infringed

upon. We now have Aboriginal rights, historical treaty rights, and modern treaties. But there is no

difference between the modern and historical treaties, other than in their length and sophistication. It is

likely that the justificatory standard will be modified. Fortunately, we have not yet had any litigation in

which there has been a breach of a modern land claims agreement and an application of the Sparrow

Agreement.

NTI is suing her majesty the Crown for a number of breaches, and the action is brought in contract, not

public law. The litigation has been going on for some time. One of the breaches is true, they did breach

it. They were supposed to establish a general monitoring plan, and didnt. There is an admission that

they didnt do it, and a calculation of costs. NTI asked for summary judgement on this one issue. As a

result, there was an alternative approach employed to the calculation of damages. The defendant is

required to disgorge their profits as restitution. Its quite rare in contract law, but happened in this case.

The court granted disgorgement. It is under appeal, now it goes to the Nunavut Court of Appeal, will be

heard some time next year. Its a powerful toolbecause there is a tendency to try to save money by not

doing certain things. This sends a message that the courts are going to deny them that saving.


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What is Self-Government?Presented by: Daryn Leas, Bertha Rabesca Zoe and Toby Anderson

Daryn Leas, Legal Counsel for the Council of Yukon First Nations

Eleven of the 14 Yukon First Nations are self-governing. We have had more than a decade of self-government experience. From our perspective, self-government has been working; it is sputtering along

but positive in the big picture. Like other claim groups, Yukon First Nations were involved in a long and

costly negotiation process. This was primarily focused on land and resources. The need for Aboriginal

people to have more control over programs and services in their communities has been a big problem,

historically.

The first part was land and resources. Then they negotiated a self-government agreement. They have

the ability to enact laws in a broad range of services. Can enact tax laws, have financial transfer

agreements, local service agreements and local government agreements. Next is programs and services.

We can identify certain programs and services and take them over. These are difficult negotiations.

What is self-government?It is allowing communities to take responsibility for delivering programs and

services in accordance with their culture, values, etc. Its also accountabilities, dispute resolution,

enforcement of First Nation laws, citizenship code, and acknowledging the rights of First Nations. There

are different self-government structures, designed to meet the needs of different communities, such as

clan structures. For example, a lot of the communities dont like elections,as it divides them and creates

opposition within communities.

These agreements are working; however, there is a need for renewal. We must have positive working

relationships with governments.

Considering dispute resolution, we need consent of the other party, and this might lead to litigation,

eventually. Only since 1979 has the Yukon had true representative government. There is a capacity issueat the territorial level. Also, at the federal level, there is not the implementation experience.

Bertha Rabesca Zoe, Legal Counsel, Tlicho Government

Our agreement took 13 years to negotiate. Ive been involved since before 2005 when it became

effective. We signed Treaty 11 in 1921. The governance system is based on the system that was there

before Treaty 11. Unity is integral to our society: one people, one language, one land. They have an

agreement with self-government and land claim combined. Its a three-party agreement. These land

claims are to provide more than just certainty, they wish to preserve a way of life for future generations.

Other agreements are attached: financing, tax sharing, GST, intergovernmental services agreement,

implementation plan, etc.

Chapter 7.4: Powers of Tlicho Governmentis quite general and broad. Weve decided what structure

well have. It lays out other powers as well, including renewable and non-renewable resources, and the

powers to enforce laws.


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There are three geographical areas in the Tlicho, which is about half the size of Nova Scotia: the

traditional territoryis where the hunting, fishing and trapping rights are exercised. There is also a

resource management areaas well. We have a 39,000 sq. km of land in a single block, both surface and

subsurface ownership. These lands are not available for development right now, pending completion of

a land use plan, due in May 2013. There are four communitieswithin these lands: Behchoko, Gameti,

Wekweeti, and Whati.

The Constitution is the nations highest law. Itsets out the powers, authority and purpose of

government. It also provides for the following:

Annual Gathering: every year the four chiefs and eight councillors gather

Chiefs Executive Council: Grand Chief and four Chiefs

Each Grand Chief is successor to Monfwi, the Chief who signed Treaty 11

Recently, three former chiefs challenged the validity of a law passed by the assembly. The courts

recognized the Tlicho government as an order of government in Canada, whose constitution cannot be

disregarded by other courts, and they were unable to pursue their case through that outside court. We

were recognized as self-governing, and they were not allowed to shop around for a court.

As for achievements, there are many to list. More information can be found on our website:

www.tlicho.ca

Toby Andersen, Deputy Minister of Nunatsiavut Affairs, Nunatsiavut

Government

Labrador Inuit Land Claim Agreement (LILCA): I was part of the Labrador Inuit negotiating team for 19

years and Chief Negotiator for 15 years. The LILCA includes a self-government agreement and providesbenefits to people who live immediately adjacent to the area. It came into effect December 1, 2005 and

the Nunatsiavut Government (NG) was created. We are the new kid on the block. There are great

challenges in implementing our Agreement. We are a third order of government in the Province of NL.

The nunatsiavut Government is an ethnic form of government at the regional level and a public forum at

the Municipal or ICG (Inuit Community Government) level.

The NG has adopted over 40 pieces of legislation, or Inuit laws, that set out how the government will

work. It also sets out parameters for industry: Were open for business, but well do it our way. We

have a fiscal financing agreement is renegotiated every five years and which provides funding to the NG

for provision of programs and services and administration of the ICGs. There are manychallenges.

What is self-government?Basically, its what we make it, but we need to have the tools to realize our

vision.

Chapter 17 of the land claims agreement sets out the authority of the Nunatsiavut Government and

allows the NG to provide programs and services to residents of the Inuit Communities. It gives the NG

jurisdiction over Inuit language, and allows them to provide programs in Inuit culture throughout the

Province..
http://www.tlicho.ca/http://www.tlicho.ca/http://www.tlicho.ca/


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The self-government chapter was negotiated with the intent that over time Labrador Inuit would

become economically self-sufficient. This is only achievable with the support and cooperation of

provincial and federal governments; they have to pull their weight and live up to their obligations under

the LILCA. To date we do not have their support in some aspects of the Agreement. The self-government

chapter allows the Nunatsiavut government to take down federal and provincial programs and

services. They (provincial and federal governments) want to pass them on to us, for us to deliver them,

but the reason we not ready to take down certain programs and services is that we need to make them

better, more applicable to our people, not just to continue to implement them without first making

changes to them. We have taken on some programs in health and social services. We are moving

forward slowly, because the NG has a lack of human resources and expertise. We are moving forward

more quickly on some health issues. The Nunatsiavut Government delivers the Non-Insured Health

Benefits (NIHB) program to beneficiaries throughout Canada.

Our people are seeing the benefits of self-government, what it can do. There is a lack of coordination

and internal communication regarding the LILCA within the Government of Canada, and within the

province as well. The government of Canada seems to think they can implement the LILCA under

existing policies; ratification implementation is being ignored. This will be discussed further in another

session.

Unique features of the LILCA:

a) First land claim in Atlantic Canada;

b) Includes a self-government agreement;

c) Provides specific benefits to beneficiaries who reside adjacent to the LISA;

d) Has a commercial fisheries component; and

e) Has an implementation fund complemented by a comprehensive IP.

There are implications and frustration as well:

a) The north of sixty funding application issues (the LILCA was intended to fix the problem)

b) Inexperience of our elected officials, therefore we needed to take time to orient/train themc) Lack of understanding by our ICGs of their roles, responsibilities, jurisdiction and powers

d) Municipalities act; and

e) Failure of governments to fulfill their obligations under LILCA.

The lack of co-ordination and internal communication by government regarding their obligations is

paramount and I will be speaking to these issues later today. In a nutshell, governments seem to think

that they can implement our land claim agreement under old policies and ignore implementing

legislation that exists.


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Restructuring Public Government: The Nunavut ExamplePresented by: John Amagoalik and Alastair Campbell

John Amagoalik, Executive Policy Advisor, Qikiqtani Inuit Association

The creation of Nunavut started in the 1960s, when people realized the homeland was in serious

trouble. Inuit land and culture was in real danger. They were concerned about losing control over lands,

resources, and the environment they depended on. Mining and oil and gas companies visited in waves.

Resolute Bay became one of the busiest airports in Canada.

1971:The original proposal to create Nunavut. Right from the beginning it was stated that it was their

intention to negotiate a land claim and create an Inuit territory in the Eastern Arctic. This was during a

time when Inuit were very concerned about the survival of their language and culture. They were

concerned about losing control of their land and resources as well as the wildlife and environment on

which they depended. Mining and oil and gas companies were being allowed to do whatever they

wanted by the federal government. They did a lot of damage to our homeland.

1974-75:The proposal was presented to the federal government, then withdrawn because more

consultation was needed with communities, everyone needed to understand the process. Inuit did not

understand why they had to claim their own land. Southern Canadians needed to be educated as well;

they knew very little about the Inuit people. Inuit had to educate southerners that they were a distinct

society.

A revised proposal was given to the government in 1976. It took almost 30 years to negotiate that

settlement. The road was not easy. Right from the beginning the Government of Canada did not want to

discuss political development at the land claims negotiation table. Inuit wanted to discuss both land and

government issues. They eventually agreed to a parallel process where the land claim and political

development would be discussed at separate tables. The Inuit made it clear that they would not sign an

agreement that did not include an agreement to create Nunavut. Long years of negotiations ensued and,

in the end, the two processes came together to include Article 4 in the Nunavut Land Claims Agreement,

committing the government to create Nunavut. The political process was controlled by the Nunavut

Constitutional Forum (NCF)responsible for consulting with the Inuit and communities in the east, and

the Western Constitutional Forum (WCF)responsible for Western communities.

1982:They held a plebiscite to confirm that they had the support of their people. When the vote came,

the people of the west stayed at home, they did not want to interfere with the Eastern Arctic. In the

east, participation was high, support was strong. Things became a lot easier after that vote. The result

was clear; the Prime Minister no longer questioned Inuit support of Nunavut.

People in government think once an agreement is negotiated, thats it, but this is not the case.

Implementation is a huge process, and there are steps beyond implementation. In my mind, Nunavut is

a four step process:

1. Creation;

2. Implementation;

3. Devolution; and

4. Provincial Status, some years down the road.


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Alastair Campbell, Senior Policy Liaison, NTI

The Building Blocks Example, Article 4:

We will cover the legal and agreement side of establishing the Nunavut government:

1976:re-tabling of the proposal

1982:Plebiscite supports division

1991:John Parker recommends boundary between Inuit and Dene-Metis, this was put to a

plebiscite and approved by the people as a political boundary.

In the Agreement in Principle, they agreed to support the creation of the Nunavut Government outside

of the land claims agreement.

NLCA Article 4.1.1:Government of Canada recommends to Parliament the establishment of a Nunavut

territory, with its own legislative assembly and public government, separate from the Government of

the Northwest Territories.

NLCA Article 4.1.2:spells out the Nunavut political accord to handle the establishment of Nunavut.

NLCA Article 4.1.3:Says the Nunavut political accord is not part of the land claims agreement

The Nunavut political accord was negotiated betweenTunngavik Federation of Nunavut(TFN), Canada

and NWT.

It was designed to be similar to the NWT Act, but modernized, and to continue until changed by

Nunavut Legislative Assembly.

TFN and The Government of the Northwest Territories (GNWT) were to be consulted on all matters to

be in the Nunavut Act before the bill was recommended to Parliament

Powers of Nunavut Government: like those in NWT, Nunavut Government has sufficient authority to

meet its obligations under the land claim agreement.

Devolution is also spelled out: The Nunavut Act shall include provisions regarding the authority to

transfer administration and control over public lands to the Nunavut government

Nunavut implementation Commission was created: Nine commissioners and one chief commissioner, to

provide advice.

Nunavut Political Accord: formula financing was recognized as desirable, training and human resources

planning were emphasized; the accord was to continue for three months after the Nunavut Act came

into effect.

Nunavut Act: assented to in 1993, all that part of Canada north of the 60thparallel. Question: does that

include marine areas? Feds have attempted to make it more restrictive, that their jurisdiction ended at

the high tide mark. Inuit have resisted this.
http://en.wikipedia.org/wiki/Tunngavik_Federation_of_Nunavuthttp://en.wikipedia.org/wiki/Tunngavik_Federation_of_Nunavuthttp://en.wikipedia.org/wiki/Tunngavik_Federation_of_Nunavuthttp://en.wikipedia.org/wiki/Tunngavik_Federation_of_Nunavut


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The Negotiating ProcessPresented by: Daryn Leas, Terry Fenge and Brian McGuigan

Daryn Leas, Legal Counsel for Council of Yukon First Nations

CYFN Negotiations:

Background about the Yukon experience: at one end is the 1902 letter sent by the Chief to Indian

Affairs regarding impacts from Gold Rush, asking for a treaty. One-hundred years later the Lake Laberge

people signed their treaty. Eleven of the 14 Yukon First Nations now have land claims. How did we get

here?

After the stampeders left the Yukon, things started to dramatically change for Aboriginal peoples.

Residential schools began in the 1920s, and the Alaska Highway was built, really opening up the Yukon.

In the 1950s there were roads built, new mines built, steamboat service stopped, and people moved to

communities. At this point many were forced into wage economies, causing social and economic

difficulties.

In the 1960s there were discussions around the need of a treaty. They felt marginalized and ignored

while development occurred.

1973: a vision of where we wanted to go. Agreement was accepted and became the basis of

negotiations from 1974 to 1979.

1973: There was mutual disgust between whites and Aboriginal people. The documentTogether Today

for our Children Tomorrow: A Statement of Grievances,speaks of self-government, and the need for

central and community governments.

In 1995, the Yukon Umbrella Final Agreement established parameters for individual agreements, which

allows Yukon First Nations to customize their agreements, but has created divisiveness among Yukon

First Nations.

The Negotiation Process is dynamic, interesting, frustrating, and protracted; it requires making tough

decisions.

Jim [Aldridge] mentioned that the Government looks at treaty negotiations as a divorce; while First

Nations and Inuit look at them as a marriage. This disparity is quite problematic.

The land claim IQ of the public is improving, and this is a positive sign.

Negotiators have to be prepared to bargain, they cant get everything. Also, the negotiation process has

to be community based, so there is a sense of ownership and real knowledge of the agreement at the

community level.
http://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdfhttp://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdfhttp://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdfhttp://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdfhttp://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdfhttp://www.eco.gov.yk.ca/pdf/together_today_for_our_children_tomorrow.pdf


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Terry Fenge, an Ottawa-based consultant, with many years experience with

negotiating and implementing modern treaties

NTI and other negotiations:

The government and aboriginal peoples always approach the negotiating process with three Ss in mind: self-determination;

self-government;

sustainability.

The federal government is motivated by legal concepts of finality and certainty. They seek to minimize

risk, duties and responsibilities. Despite that, we have come to several agreements over the years that

define a middle ground.

People make a difference. Individuals make a difference. Tom Siddon was the Minister of Indian Affairs

and Northern Development in the 1970s. His relationships with Inuit were critical in the furthering of the

claim and territory.

There have been instances where one side does not believe the other. Its important that the

negotiators have confidence in their partners.

Because negotiations take so long, the political, legal and economic contexts can change dramatically

during that period. One must really understand the context within which you are negotiating.

One set of negotiations: good guys, bad guys;

Other set: on one side, with board of directors and staff;

Other set: federal negotiators with their own people, in different departments.

Thats why an external federal negotiator is important; theyre not part of the federal system. Anexample: the bowhead whale harvest agreement, where cooperation was essential.

There is always a link between what happens at the table and external processes. An example: National

Parks. ATFN had invested a lot of effort in wildlife management and traded their consent to National

Parks for federal assent to wildlife provisions.

In Nunavut: they were lucky, they had relatively few third parties. Once they had an agreement in

principle, they knew they had to deal with the mining industry. They had a full day meeting between

miners and negotiators and came to a deal.

Land: when we were doing the land ownership negotiations, there was a lot of potential. We got goodadvice about what they should own. If you look at the map of what is now owned by Inuit, they have

some excellent prospects. This was the result of hiring someone to advise them.


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Brian McGuigan, former chief federal negotiator

Brian began his presentation with a video of cowboys herding cats (found on YouTube under Herdingcats video). He explained that the video il lustrates a lot of what he does.

The role of a federal negotiator is not much different from that of an Aboriginal negotiator. A chief

federal negotiator is on contract, and has to be comfortable being in the middle, being a bridge between

the two parties. They must build understanding and trust on both sides.

You need to be a Deal Sniffer: you spend a lot of time looking for common ground between the two

parties. You spend time getting to know the communities youre working with. This istrue on the federal

side and Aboriginal side.

On the Aboriginal side: What are the challenges that this community needs to have addressed?

On the federal side: There are unique federal challenges: This goes back to the Herding Catsvideo

itsa huge organization with a lot of interests and needs. The internal process is not necessarily about

building consensus, but about addressing the concerns of every person in the hierarchy who has a no.

Building credibility: Before tackling the difficult issues, the negotiating table has to have some credibility.

People get to know each other, and are trusted by the communities behind them.

Lobbying by the community makes a difference to the federal negotiator. At all stages, this applies. In

the mandating process: we must stay in contact and keep a dialogue open.

There is a certain way that things happen in Ottawa. Sometimes things move forward because no one

objects, rather than all assenting.


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Implementation ChallengesPresented by: Matt Mehaffey, Toby Andersen and Tom McCarthy

Matt Mehaffey, Consultant to Several Yukon First Nations, Principal, Mehaffey

Consulting

In reference to the fiscal system, Matt explained that they are like marriage counsellors dealing with all

the problems. We view them as problems when we should actually be looking at them as challenges.

Land claims agreements have completely rearranged legal and jurisdictional landscapes and it is to be

expected that the day after an agreement is made everyone will not necessarily have the exact same

understanding of what was meant. This is especially made difficult when many of the negotiators

involved leave immediately after and a whole new set of people come in and try to interpret what was

meant. In the case of the Yukon, not just one, but eleven agreements were created, all with

independent jurisdiction. Eleven different governments, dealing with 30,000 people, within the same

land mass; it would clearly take some time to sort out how those agreements are supposed to work.

When we encounter struggles and challenges with implementation, this demonstrates that self-

government is in fact working. However, progress has been slower than what most First Nation

communities had anticipated and the amount of work has quite possibly been underestimated. A big

part of the challenge has been expectations. Expectations that life is going to be completely different,

youre going to be able to create an entirely new government, with support and requirements to make

good policy decisions, produce legislation, and hire the right people. The amount of work required

cannot be underestimated, and it probably was, which is why we are facing what we are right now.

On the flip side, the biggest challenge to self-government is the lack of recognition from federal,

provincial and territorial governments that these are legitimate, genuine governments. This underlying

lack of recognition is the foundation of many of the issues we face. Matt saw an example of this in one

of his first meetings, which was a negotiation session for CYFN in an old residential school. It was an

ongoing negotiation with the department of Human Resources and Skills Development Canada. Halfway

through the meeting, the director general for the BC /Yukon region said the land claim didnt apply, so

they left the meeting.

Years later, the department changed its mind and set up a group to deal with skills training. It

accomplished the same goals the First Nations in the area were trying to accomplish. The First Nations

were unsuccessful because they were asking for an intergovernmental agreement, but the terms did not

include self-governing First Nations. They had to apply a separate set of regulations, which were much

more restrictive and did not allow parties to implement what both sides thought would be a beneficial

arrangement. This example underlies this issue of recognition.

For success, other governments in Canada and the public have to recognize that these are legitimate

governments and they have to understand what level of jurisdiction has been agreed to. It is not a junior

government or municipality. Until this shift happens, institutionally there will still be challenges and

obstacles. Even when you are dealing with committed people who have the same goals in mind.

When asked the question from an audience member if he has seen an appetite from treasury board

secretariats to change the definition of government, Matt responded, no, no concerted effort. The


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difficulty is that central agencies, including many federal departments, take the position that the only

department authorized to talk to Aboriginal groups is the department of Indian affairs (INAC/AANDC).

Some talk directly to them, but central agencies tend to shy away with dealing directly with Aboriginals.

Toby Andersen, Deputy Minister of Nunatsiavut Affairs, NunatsiavutGovernment

Trust: before delving into his topic, which is largely centered on the positives and negatives that have

transpired in regards to implementation challenges, Toby wanted to outline the concept of trust, and its

importance. He outlined an example where negotiators came up north for Land Claims negotiation

sessions . Upon their arrival, the Inuit negotiators met with them and then took them out on the land on

a caribou hunting trip overnight. The next tuime they went back to the table, and talked about the Inuit

and their relationship to the land. The negotiators looked back at them and said We understand. It

took five years before I could look across at the other chief negotiators and say I trust you. This made

the difference with coming to a consensus.

We lost that trust and relationship as part of the implementation process. There is a tripartite

Implementation Committee established under the LILCA but the Federal representative does not know

anything that happened during the negotiation. Ruby Carter is the provincial representative on the

committee . She was a member of the provincial LILCA negotiation team so she understands what /how

things were negotiated. Toby was the Inuit Chief negotiator so he understands the LILCA . On the

federal side though, there is nobody on the implementation committee who was involved in our

negotiation. WE lost that continuity when our Agreement was signed. They change representatives

every year and we are back to square one, having to reorient and bring them up to speed. This is an

inconsistency on the part of the federal government.

Interpretation is another negative aspect. Weve run into some real issues with the federal governmentaround interpretation. He explained that basically they say: this is what it says; this is what we think it

means. So there is no consistency from negotiation to implementation. All we hear from federal

representatives is Well have to take this issue back to justice and well get an answer for you. After

several attempts, we still have not heard from justice. Bring them to us, or well go to them.

We have run into problems more with the federal than the provincial government. Government

departments dont seem to be aware of the fact there is a Land Claims Agreement with the Labr ador

Inuit. Theyre just going ahead trying to implement our agreement under laws of general application.

We have to try to orient them. The NG came to Ottawa and held an orientation session with senior

officials ( Deputy Ministers) from five federal departments.. We explained our agreement and

introduced our Deputy Ministers from each department of the NG. Our Deputies gave overviews of their

departments and what they were doing and planning. We explained that it seems that within yourfederal departments staff dont seem to realize that we have a Land Claims Agreement and that your

department has obligations under the LILCA.

A result of these meetings was that the Department of Fisheries and Oceans set up an implementation

working group. The department of Environment, Canadian Wildlife Service scheduled a couple sessions

with their field staff, the province and NG and we went through the different chapters of the agreement


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with them, and this was positive. The challenges can be overcome, and there are ways we can work

together to achieve what the agreement intended.

Another problem or frustration is that it seems as though in the federal system, which is so large, that

federal departments think that INAC/AANDC is responsible for the implementation of Land Claims

Agreements. In actuality, there are many federal departments that have obligations under the

agreements. The message we have been giving the government of Canada is that we cannot implement

our Agreement without you understanding and fulfilling your obligations . If this happens, we can work

together and make good things happen.

There are positive things we can look at. As deputy minister of Nunatsiavut Affairs our responsibilities

cover Implementation of LILCA, Justice, Transportation, Housing amd enrollment of Beneficiaries .

There are three federal and provincial departments responsible for these issues within their respective

governments . If we encounter a problem it merges its way up through the system to my attention. It

doesnt need go to his Minister. I can contact my counterpart and call them by name and we try to solve

the problem. This is a result of our orientation sessions with federal and provincial senior officials and is

an example of a positive outcome of a self-government relationship.

We can develop programs that we know are the best fit for our people. The question is, what to do we

do about the lack of implementation efforts by the federal government ?

In closing, the regions should look at trying get the federal government to establish a committee of

senior officials of all departments who are responsible and have obligations under land claims and self-

government agreements. This committee would be responsible for Implementation of Land Claims and

Self Government Agreements.

Implementation Issues:

Lack of departmental communication and understanding of the Labrador Inuit Land Claim

Agreement (LILCA); Lack of consistency in federal representatives from negotiation of agreements to

implementation;

Interpretation of the LILCA;

Awareness of LILCA and governments constitutionally protected obligations (they must be

continually reminded);

Government departments seem to think that one department is responsible for implementation

of LILCA;

Governments seem to think they can implement LILCA under existing policies and ignore the

LILCA implementing legislation;

How to Address the Above Issues:The best option is for the coalition to attempt to convince the Government of Canada to establish an

independent division which has a clear mandate and is responsible solely for implementation of Land

Claims Agreements.


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Tom McCarthy, Director of Public Services, Tsawwassen First Nation

The federal governmentsapproach to risk and liability with respect to Treaty First Nations:

Tom asked the audience to humour him and engage in an experiment. Before it began, he provided a

preamble regarding the energy and promise of treaties. Treaties, at least in BC, are a great modern

venture of our time. Designed, when the process initially got going, to resolve the most pressing public

policy challenge in Canada today, they are such an exciting thing to be working on. They are an

extremely innovative approach to mend disparities between Aboriginal and non-Aboriginal

communities.

According to the treaty commission in 1993, every nation was supposed to have a treaty. Only two are

in place now. There was such energy surrounding the process; we were all ready to be risk takers. Its a

bold vision, treaties, and there are a huge number of risks, more for First Nations than the provincial

government.

He asked everyone, close your eyes and pretend for a second that you will not ever be taxed. Now weregoing to introduce you to a legal vacuum. We dont really know what the fallback position is. In this new

situation, if your First Nation makes a dollar, were going to tax it, because were going to start this

process called decolonization. We are changing your fund status as a person in the eyes of the law. This

is the package we offer you, but you have to pay taxes. How many of you would say yes to this deal?

He explained that Tsawwassen said yes, because they saw energy and opportunity. Tsawwassen can

thus be considered successful. There is no reward, economically speaking, without taking that risk.

The first sign that things were not going to go as they thought, was when they had to register all of their

parcels of land, yet the federal government did not allow them to pre-sign 6,000 legal documents. Does

that seem reasonable? One of 23 did not have the authority to pass one of these acts. There is no basis.

There is a new approach to treaty negotiations. Tom recently went over some quotes in a federal

PowerPoint on the new approach to treaty negotiations. There was no evidence of the respectful

relationship that should be present. When you deal with treaty First Nations and self-government,

remember the sense of hope that made that FN members agree to the trade-offs inherent in those

agreements. Please approach a problem with that sense of inspiration; were trying to address Canadas

most pressing policy challenges.


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How Modern Treaties Affect Resource Development and the

Regulatory ProcessPresented by: Dick Spaulding, Berta Rabesca Zoe and Wayne Johnson

Dick Spaulding, Lawyer, Nunavut Tunngavik Inc.

1. The NLCAs resource management measures

The NLCA contains four main resource management tools:

i. Inuit land ownership gives Inuit certain rights to control access to parcels of land, and how

they are used.

ii. Inuit have rights to negotiate impact and benefits agreements directly with industry where a

major development project is proposed anywhere in the settlement area, subject to

arbitration.iii. The Agreement establishes institutions to share resource management decisions with

government, which apply on public and Inuit lands (co-management boards).

There are four of these - a wildlife management board, land use planning

commission, impact and review board, and water board

iv. Inuit also have certain rights to participate in establishing and managing Parks and

Conservation Areas.

These rights are exercised through distinct roles that the co-management boards

have respecting Parks and Conservation Areas, and through a distinct right of Inuit

to negotiate impact and benefit agreements with government when a Park or

Conservation Area is established

My presentation looks mainly at the third of these tools, the co-management boards, and their

relationship with the regulatory agencies that were managing resources before the Agreement was

made. Youll hear more about impact and benefits agreements in the next session on the agenda, and I

believe my co-presenters in this session will have more to say about Aboriginal land ownership as a

management tool.

2. The NLCA co-management boardsNunavut Wildlife Management Board, Nunavut Planning

Commission, Nunavut Impact and Review Board, and Nunavut Water Board

a) Purpose of co-management

The purpose of the co-management system in the Nunavut agreement is stated in the Agreements

preamble: to provide rights for Inuit to participate in decision-making concerning the use,management and conservation of land, water and resources, including the offshore.

A companion commitment is specific to wildlife: to provide Inuit with rights to participate in decision-

making concerning wildlife harvesting.

I think its fair to say that the Agreement parties recognized this Inuit right to participate in decision-

making in response to two facts:


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1. Canada had agreed to negotiate on the basis of an Inuit claim to Aboriginal title in the whole

settlement area; but

2. Canada was only prepared to recognize Inuit ownership in a minority portion of the area.

Co-management is the ingredient in the package that responds to the Inuit demand for some control

over how resources would be used in the three-quarter-odd portion of the settlement area where they

would exchange their title claim but not be recognized as the land owner. Also, within Inuit Owned

Lands, where Inuit ownership is limited to surface title, this right responds to the Inuit demand for a

strong say in development of the subsurface. Subsurface rights-holders are entitled to explore for and

gain access to minerals, subject to arbitration about the terms of access if the Inuit surface owners

withhold their consent.

b) Structure and powers of the boards

The four co-management boards are standing institutions of public government, funded by the federal

government. As a rule, all follow a 50:50 membership formulahalf of the members nominated by

Inuit; half by government, and a chair nominated, or at least vetted, by the other members.

Their powers are also similar in some basic ways. All do their work independently of Ministers

responsible. All have a defined relationship with other government actors in influencing outcomes -none is simply an advisory body. Also, they are all mandated to make decisions through a transparent,

accountable process: Inuit participate in their decisions not just through membership in them, but also

at the community and regional levels, by taking part in their consultations and hearings.

Turning to their specific powers:

The Wildlife Management Board works mainly in a distinct field, the regulation of harvesting. Well be

looking at that later this morning. The wildlife board also has a role in managing wildlife habitat. The

establishment of Conservation Areas by government is subject to NWMB approval if the Board chooses

to play that role. The NWMB can also

review and approve draft plans for the management of wildlife habitat anywhere in the

settlement area that are generated by government;

make habitat-related planning recommendations to the planning board, and

advise the impact review board regarding habitat mitigation measures.

Decision roles in the assessment and mitigation of impacts on wildlife habitat, project by project, are

assigned by the Agreement to other co-management boards, so concern for wildlife habitat has a

prominent place in the decision mandates of the planning commission and impact review board, in

particular.

The Planning Commission writes land use plans that direct where and on what basic terms development

may occur. Plans have to be developed in consultation with the people affected, and the drafts have to

be reviewed in a public hearing before the Commission can submit them for government approval.

The process of plan development happens independently of the approval of any particular resource

project. Once a land use plan is approved by government, the Commission joins the regulatory system,

so to speak, and decides whether each project proposed in the planning area conforms to the plan.

Where an approved land use plan is in place, its mandatory that project proposals be put to the

Commission to determine the projects conformity with the approved plan. Its also mandatory that the


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project conform to the plan, unless the plan allows the Commission to grant a minor variance and the

Commission does so, or unless the proponent asks for and receives an exemption from the Agreements

conformity requirement from the Minister responsible. The impact and review process cant proceed

otherwise, and regulatory permits cant issue.

The Commission was established in 1996. To date, two regional land use plans have been approved.

In those regions the Commission is doing conformity determinations based on the plans. Currently

the Commission is working on a Nunavut-wide plan. In the three planning regions for which an

approved land use plan is not in place yet, the Commission does not take part in the assessment of

project proposals.

The job of the Nunavut Impact Review Board is entirely project-specific. First, NIRB screens most project

proposals to decide whether or not a public review is necessary. Second, NIRB holds most public review

hearings, assessing the likely impact of projects and recommending to government whether or not the

project can proceed, and if so on what terms and conditions. Some relatively minor projects are exempt

from NIRB screening unless the Planning Commission decides that there are cumulative effects concerns

with the proposal. When NIRB decides there must be a review, the federal Minister can send the review

on an exceptional basis to a federal panel, instead of NIRB, if the project involves an important nationalinterest or if the footprint of the project reaches outside the settlement area. The Agreement sets out

the terms of reference for any federal panels of that kind, including a requirement of 1/4 Aboriginal

representation. While a project proposal is being screened or reviewed by NIRB, permits cannot be

issued for the project without NIRBs approval.

Since 1996, NIRB has done many screenings and conducted five reviews. I believe there are

least four projects currently in the review process, if we include the Mary River mine project

on which NIRB has delivered its recommendations. So far the federal government has not

referred a project to a federal panel instead of NIRB, and NIRB has been responsible to review

some very large projects, such as Mary River and the Bathurst Road and Port project that are

on hold right now.

The NWB licenses uses of fresh water or deposits of waste into fresh water. As do most other regulators

in Nunavut, NWB decisions have to follow any approved land use plan thats in place for the area, and

any project certificate containing the results of a NIRB review. That means that the NWB cant license a

water use that does not conform to both the land use plan and the project certificate, and that the NWB

has to make sure that the conditions it attaches to licenses implement the terms of land use plans and

project certificates. Again, the same rule applies to most other Nunavut regulators.

The water board also has a new function that it hasnt had to exercise yet, which is to arbitrate

compensation for Inuit Land Owners if their water rights are going to be impaired by a licensed water

use, and the Land Owner and proponent have not been able to reach a compensation agreement.

Stepping back, and asking how these bodies work together, we can think of them as producing three

filters through which a Nunavut project proposal has to pass in order for the project to proceed. The

basic mesh is the land use plan. NIRBs project certificates contain a project-specific screen, and the

NWB, together with most other regulators, produces the finest mesh in the system, implementing the

terms and conditions in plans and project certificates in its licenses, and attaching more stringent terms

and conditions of its own.


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c) Changes intended

Ive done up a before and after chart to show, in an abstract way, how the new co-management

system changed the regulatory status quo.

Pre-NLCA regulatory process (sample)

In the period of NLCA negotiations, regulators, for the most part, acted separately when deciding

whether to issue their various authorizations, each one responsible for a different dimension of the

projects impacts. Most regulators could issue their authorization even if another authorization

required for the project had been denied. No regulator was responsible for viewing the impacts of

the project as a whole, and there was no other body active in the regulatory process that clearly had

legally binding authority to look at a project that way.

o Ive pictured land use planning at that time as occurring to the side of the regulatory

process. At the time, regional land use planning had begun in what was then the NWT,

with Inuit representation. Two regional plans were being worked on in what is now

Nunavut. But the system depended on federal policy rather than legislation for its

mandate, and there wasnt a public process in place to ensure that projects would

conform to land use plans. At the end of the day there was no legal requirement that a

project has to conform to a land use plan in order to receive approval.

o There was also environmental assessment being done, under federal Cabinet guidelines

called EARP Guidelines. Ive drawn the role of e.a. in the regulatory scheme using


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dotted lines. The Guidelines were being followed by regulators as a matter of practice,

but it was uncertain at the time whether the federal environmental assessment process

was legally mandatory. In the Guidelines process, screening was not done by a

specialized bodyeach permitting agency screened its own permit application. There

was also no standing body to conduct public reviewseach time a review was called

for, the Minister would strike an ad hoc panel.

o There was an NWT Water Board in place, but there was no assurance of Aboriginal

representation on the Board.

Here is the after picture:

Post-NLCA Regulatory Process (sample, with land use plan approved)

Under the NLCA, the whole regulatory system gets tied together, or integrated, by the land use

planning and impact review functions, each of which is legally binding.

Integration happens at two stages:


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o At the assessment stage, planning and impact review each integrate the regulatory

system by assessing project proposals as a whole

o Near the end point, when regulators decide whether to approve projects and on what

terms, integration also happens as a result of the new legal duties placed on regulators

to implement 1) the requirements of land use plans, and 2) the terms and conditions of

project certificates.

The before and after perspective shows, I think, that in the process of introducing co-management

with an Aboriginal people into the resource management system, the parties also agreed to reform the

system as a whole.

d) Key elements of the NLCA co-management bargain

To recap how the right of Inuit to participate in decision-making ends up being embodied in the co-

management bargain, I think its useful to break-out six ingredients:

I. Inuit representation in important decision-making bodies. Usually 50:50.II. Importance to Inuit of the decision mandate of those bodies. In the result, the decisions that

Inuit take part in involve wildlife, water, andby means of the broad planning and impact

review mandates - most aspects of regulatory decision-making regarding resource

development that impact on community life, including the regulation of socio-economic

impacts. [comment on NIRB qualifier under 12.2.3 if there is time].

III. Weight of the role played by those bodies (in other words, the balance of power struck

between the co-management bodies and government in the making and implementing of

decisions). I think it is fair to say that the balance of power struck in each case is delicate.

Government generally has the last word on outcomes, not necessarily on process. In most

cases government is legally bound to implement approved decisions.

IV. Inclusion of Inuit values and priorities in decision criteria. A less obvious element, butsignificant.

V. Real opportunities for input by affected Inuit individuals and communities - the opening up

of the resource management process to participation on behalf of affected Inuit individuals

and communities.

VI. Assurance of capacity for the boards is another factorthat falls into a discussion later on

today, I believe.

3. Some points of comparison with other modern treaties

i. Mode of implementation of the co-management systemland claims agreement plus

legislation (NLCA) or legislation alone (Sahtu lca and Gwichin lca) )

o NLCAthe planning and impact review boards could open in 1996 without

waiting for the federal government to introduce their implementing statute.

o but without the statute in place as yet, the two boards have had to

operate for more than 15 years without the legislative clarity that had

been promised Inuit.

o MVRMA - Sahtu and Gwichin settlement areas. By comparison, the Sahtu and

Gwichin Boards could expect to work from a more fully articulated mandate

from the outset, but they had to wait for passage of the MVRMAs enactment


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before starting their work. There was delaythe Gwichin brought court action

before the MVRMA was enacted. The stakes for the Aboriginal party in the

drafting of the implementation statute may also be higher under that approach.

ii. Scope of mandate of the co-management boards that licence water use. (Limited to water

licensing in NLCA; includes land use permitting under MVRMA, on public lands and, in some

settlement areas, First Nation lands).

iii. There are also differences in the planning and e.a. board mandates in other agreements. We

can get into examples if there is time for questions.

Bertha Rabesca Zoe, Legal Counsel, Tlicho Government

We will talk about the Mackenzie Valley Resource Management Act and the devolution that is occurring.

Yesterday we talked about what agreements intend to achieve; we talked about certainty,

harmonization of laws, etc. The agreement deals with land and along with that comes regulatory

systems.

Tlicho feel responsible for their land. Under their agreement, chapter 22 sets out the land regulatorysystem in the territories. There is to be an integrated system of land and water management. One of the

ways of making sure that the Tlicho have their say is to participate in co-management. The Tlicho are not

opposed to devolution, but it must respect the co-management provisions in the agreement.

Devolution is a devolving of authorities and responsibilities. In our case, its a transfer of public lands.

I have been involved in negotiations since 2003, on behalf of the Tlicho. Agreement in Principle was

signed in 2011, even though all aboriginal treaty groups opposed the signing of that. There are many

different authorities involved. Since then some have signed on. Tlicho have chosen not to participate in

the negotiations thus far, and have not signed.

We want to ensure that the interests and concerns are represented fully; we do not want to simply beconsulted. In the agreement, there is a cap on how many resources will flow to the North.

The Tlicho have developed a proposal outlining the conditions under which the Tlicho will sign the

agreement. They want the government to say that after devolution, the WLWB (Wekeezhii Land and

Water Board) will continue to exist. There is a need for a tool that will manage devolution for the

existing organizations.

We talk about land claims creating uncertainty, but recent changes are creating more uncertainty. There

is nothing wrong with the current system/regulatory regime. Its the federal governments agenda to

fast track development and to limit the role of Aboriginal governments.

Our co-management is not for sale.

Wayne Johnson, NTI; President, Wayne Johnson Associates Inc.

Ill frame my two talks this morning around the objectives of the NLCA as set out in the recitals. In this

talk, I will discuss the regulatory regime that applies to mineral exploration and mining projectsin


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particular how it relates to minimizing impacts. I will describe the regulatory process that a mineral

exploration or mining company will go through to explore for minerals in Nunavut and, if successful, to

mine those minerals.

NLCA Objectives:

to provide for certainty and clarity of rights to ownership and use of lands and resources, and of

rights for Inuit to participate in decision-making concerning the use, management and

conservation of land, water and resources, including the offshore

to provide Inuit with wildlife harvesting rights and rights to participate in decision-making

concerning wildlife harvesting

to provide Inuit with financial compensation and means of participating in economic

opportunities

to encourage self-reliance and the cultural and social well-being of Inuit

In his presentation, Dick [Dick Spaulding] has described the role of the NPC, NIRB and NWB in dealing

with the impacts of resource development.

These boards are critical in allowing Inuit to limit the impacts of development. However, they onlycomprise a part of the regulatory regime.

By regulatory regime or regulatory process, or I am referring to all of the requirements that a

company must deal with, not just those prescribed by statute.

Minimizing impacts:

Land use planning (NPC), environmental impact assessment (NIRB) and water licensing (NWB)

work together to give Inuit an important voice in resource development in Nunavut.

The outcome of these processes is primarily to limit the impacts of resource development on

the environment as well as to deal with socio-economic matters.

But there is more to the regulatory regime than the IPGs: I consider the regulatory regime toconsist of all of the requirements that a company must deal with in order to carry out

exploration or mining in Nunavut.

Here is a list of the most prominent players involved in the regulatory process:

NTI and the RIAs

o NTI family HTOs, Development Corporations

The IPGs

o Nunavut Planning Commission (NPC)

o Nunavut Impact Review Board (NIRB)

o Nunavut Water Board (NWB)

Government of Canadao Aboriginal Affairs and Northern Development Canada (AANDC)

o Natural Resources Canada

o Environment Canada

Government of Nunavut

o Economic Development and Transportation

o Department of Environment


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Before I go further, I want to introduce Inuit Owned Lands. These are lands to which Inuit were granted

title under the NLCA.

There are two categories of IOLfor convenience, NTI refers to these are Surface IOL and Subsurface

IOL.

18% of land in Nunavut (~NSA) is Inuit Owned Lands (IOL)350,000 sq. km.RIAs hold title to

the land

Surface IOL surface rights only944 parcelsCrown holds title to minerals

Subsurface IOL surface and subsurface rights150 parcelsabout 10% of IOL (2% of

Nunavut)selected mainly for mineralsNTI holds title to minerals

The first step for an exploration or mining company is to acquire the mineral and surface rights to the

land it wishes to explore.

Depending on the type of land, it acquires these rights from NTI, the RIA, or AANDC (Aboriginal Affairs

and Northern Development Canada).

If a land use plan is in effect for the region in which the company wishes to work, it must also send its

application, along with a completed questionnaire, to the Nunavut Planning Commission for a

conformity determination. The authorizing agency will also do this. Here is a summary of the steps:

Acquire mineral rights from NTI or AANDC

Acquire surface rights (right of access) from RIA or AANDC

Application for surface rights gets forwarded by the authorizing agency or the company to NPC

for a conformity determination, where a land use plan is in effect

An application forwarded to the NPC must also include a completed questionnaire

NPC reviews the proposal and makes a determination.

If the NPC determines that a project proposal is not in conformity and does not approve a

variance, the proponent may apply to the Minister for an exemption from the conformity

requirement.

A non-conforming proposal or one that is not approved pursuant to a variance or not exempted

by the Minister cannot proceed.

If the project is in conformity, has been exempted or the NPC approves a variance, NPC forwards

the proposal to NIRB for screening.

We will assume that the project has been forwarded to NIRB for screening.


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The top left part of this slide shows the process so far, with NIRB in receipt of the project proposal. (This

chart, and the following two are courtesy of NIRB.)

This initiates the Screening process.

Under Part 4 of the NLCA, NIRB screens project proposals to define the extent of the regional impacts of

a project and in order to determine whether or not a review of the project is required.

If NIRB recommends that a review be undertaken, the Minister will determine whether it should be a

Part 5 or a Part 6 review, as shown in the pink box.

If it is a Part 5 review, NIRB will conduct the review and will then determine whether the pro

modern treaties 101 proceedings 1211261

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